The Supreme Court heard oral argument today in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case will decide whether Colorado’s public accommodations statute violates the First Amendment when it requires a Christian baker to create a custom-made cake for a same-sex wedding. For background and legal analysis on the case, I have written a blog series, the last post of which is here.

In deciding this case, the Court must choose between three legal frameworks. (1) If Jack Phillips’ cakes are considered pure speech, the Court will likely strike down Colorado’s antidiscrimination provision as applied to Masterpiece Cakeshop. (2) If the Court considers selling the cakes simply conduct, Colorado can apply its statute to require Phillips to sell cakes to same-sex couples. (3) A middle position, and one I believe is correct, is the view that the cakes are expressive conduct. In that case, Colorado can likely apply its statute to Masterpiece Cakeshop unless Colorado is deemed to selectively apply its public accommodations statute in ways that penalize certain viewpoints.

This oral argument post will detail the ways each Justice framed the case. I have ordered the Justices from the Justice who seems most inclined to side with Colorado to the Justice who seems most inclined to side with Masterpiece Cakeshop. The Justices spent most of the argument battling with the unfortunate consequences that would arise no matter what the ruling in this case. Any ruling, as became apparent from oral argument, will be problematic, either for free speech liberties or for civil rights.

The four oral advocates in this case are: KRISTEN K. WAGGONER, for Petitioners Masterpiece Cakeshop and Jack Phillips; GEN. NOEL J. FRANCISCO, Solicitor General, Department of Justice, as amicus curiae, supporting Petitioners; FREDERICK R. YARGER, Solicitor General, Denver, Colorado; on behalf of the State of Colorado, Respondent; and DAVID D. COLE, of the American Civil Liberties Union.; on behalf of the private Respondents Charlie Craig and David Mullins, who wished to purchase a cake for their wedding from Masterpiece Cakeshop.

Justice Sotomayor:

Justice Sotomayor appeared to believe that cakes, to the extent they are speech, are the speech of the person purchasing the cake, not the person baking the cake. She used the example of a cake that says, “I’m sorry” – no one would deem the baker to be apologizing for anything, even if the spouse who purchased the cake is contrite. Part of the reason for this distinction between purchaser and creator, according to Justice Sotomayor, is that cakes are primarily designed to be eaten, not to communicate.

From the cold transcript, it appeared that Justice Sotomayor became somewhat agitated with Masterpiece Cakeshop’s attorney Waggoner, when trying to glean a straight answer on whether the First Amendment trumps racial discrimination laws. Waggoner should have noted that serving a customer in a restaurant is not communicative in the same way as creating a custom-made cake.

When General Francisco argued that race is different, and racial discriminators should be treated differently, Justice Sotomayor made a compelling case that the LGBT community has been historically maligned and refused service, demonstrating that perhaps this community could also meet strict scrutiny if the cakes are considered pure speech.

Justice Sotomayor stressed the importance of public accommodations laws in changing society’s views about civil rights, specifically interracial marriage. She noted that, “[i]f you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.”

Justice Sotomayor also picked up a point raised by an amicus brief written by corporate law scholars, and asked about whether the views of Jack Phillips should be imputed to the corporation, Masterpiece Cakeshop. I don’t think that issue should be a sticking point, especially in a case where the stockholders are Phillips and his wife, given that corporations have their own speech rights.

Justice Ginsburg:

Justice Ginsburg may believe that cakes with no words on them are not sufficiently celebratory to constitute speech. In her questions, she indicated that this would be a different case if Phillips were asked to write “God bless the union of Craig and Mullins” on his cakes. Justice Ginsburg seemed to want free speech protection for that speech, even if a baker wrote “God bless the union of Ruth and Marty” on another cake.

Thus, Justice Ginsburg seemed troubled by requiring cakes with any words on them, even if those same words are used on cakes for opposite-sex couples. Her views about what the First Amendment requires are therefore broader than those stated in Colorado’s brief, where the argument was that words can be compelled, as long as those words are identical to what would be written on an opposite- sex couple’s cake. But, under her theory, Colorado would still win, if we accept that this specific cake in this case was to have no words on it.

Although Justice Ginsburg asked tough questions of both sides, she actively assisted Colorado’s lawyers when being questioned by less sympathetic Justices.

Justice Kagan:

Justice Kagan, while taking her task seriously, seemed to delight in the line-drawing challenge of determining what activities are imbued with sufficient expression to constitute speech. She noted three axes of line drawing: (1) cake baking versus other activities, (2) discrimination on the basis of sexual orientation versus race, gender, or religion, and (3) weddings versus other events, like Bar Mitzvahs.

Justice Kagan got Waggoner to concede that hair styling is not speech, even if jewelry design might be. Why not “a wonderful hairdo,” Kagan asked, or a make-up artist, who is literally “called an artist.” Waggoner implied that these determinations are based on “context,” when the activity is intended to communicate something, which doesn’t provide much guidance to the Court.

Justice Kagan further explored the difference between racial discrimination and the desire not to create a cake for a same-sex wedding. Waggoner argued that Phillips objected to the message, not the person. The white supremacist baker would be objecting to a person’s race, not the message of the wedding.

Justice Breyer:

Justice Breyer seemed most concerned with rendering a narrow opinion that did not undo all civil rights laws, especially those prohibiting racial discrimination. Also in search of a line between activities that are speech and not speech, Justice Breuyer specifically asked about Ollie’s Barbecue – the restaurant at issue in Katzenbach, where the Supreme Court decided that Congress may proscribe racial discrimination using the Commerce Power. Katzenbach did not explicitly raise a free speech challenge, but Justice Breyer was highlighting the civil rights implications of this case.

Justice Breyer approached this case in the way he approaches many other speech cases, balancing the speech at issue here, which is only partially expressive, with the important anti-discrimination goals. At that point, Cole, on behalf of Craig and Mullins, invoked the framework of expressive conduct, which I believe is the right framework to use even though I am not an interests balancer like Justice Breyer.

Justice Kennedy:

Justice Kennedy is acutely aware of the broad implications of a ruling for Masterpiece Cakeshop on gay rights issues. General Francisco tried to perform the parade of horribles in the other direction – noting that in Colorado’s view, an African American can be compelled to create a cross for a Klan rally – but Justice Kennedy was concerned that so many activities associated with a wedding can be considered speech. Further, Justice Kennedy wondered if a Christian baker could put a sign up claiming that he does not serve same-sex weddings, which would be “an affront to the gay community.” He was concerned that, if Masterpiece Cakeshop wins, bakers all over the country will receive messages telling them not to serve gay customers.

On the other side, Justice Kennedy was troubled by the Colorado Commission’s apparent hostility towards religion, especially the Commission’s statement that “despicable rhetoric” has been used by religion to justify discrimination. Justice Kennedy pushed Colorado’s Solicitor General Yarger several times to know whether the Commission disavowed or disapproved that statement. Yarger, perhaps with too much candor, stated that he “would not have counseled my client to make that statement.” Justice Kennedy seemed open to Masterpiece Cakeshop’s free exercise challenge, on the basis of the Commission’s animus towards religion.

Justice Kennedy waxed somewhat poetic in trying to balance the competing interests here. “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Justice Gorsuch:

Justice Gorsuch attempted to glean an abstract principle that separates expressive activities from non-expressive activities. General Francisco wanted to draw the line at whether you can analogize the activity to something that looks like traditionally protected speech – asking whether the activity has a primarily expressive or a primarily utilitarian function. Gorsuch joked that no wedding cake actually tastes great – leading to the view that it must be expressive under General Francisco’s test.

Justice Gorsuch seemed unconvinced by the distinction between refusing to sell a cake to someone because of his identity and refusing to sell a cake because of its message. He attempted to tease out the distinction, with both sides, between compelling someone to create a message and compelling someone to serve to a person. To Petitioners, he asked, “So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” To Respondents, he noted that refusing to bake a cake with a cross on it for someone in the KKK — if a baker would make an identical cake for someone in the Red Cross — could be framed as either a refusal based on identity or on message, just as in this case. Ultimately, Justice Gorsuch seemed concerned with requiring people to create speech with messages they do not endorse.

Justice Thomas:

Justice Thomas did not ask questions at oral argument, but I would guess that he favors Petitioners. His vote was likely needed to grant certiorari, and the Colorado Civil Rights Commission won below.

Chief Justice Roberts:

The Chief seemed concerned with the implications of the rule proposed by Colorado – that a business must sell an identical product to anyone, regardless of identity. Under that theory, he believed a Catholic pro bono organization would have to offer its legal services to the opponents of Masterpiece Cakeshop.

Chief Justice Roberts was skeptical of the distinction between custom-made and pre-made cakes, and for good reason. That distinction, made by Waggoner, undermines the view that wedding cakes are inherently expressive – even without writing. If Waggoner is to claim that even the most basic cake, when made for a same-sex couple, is compelled speech, then she must be arguing that it is the cake’s involvement in the wedding that matters for First Amendment purposes. That approach would apply even to a pre-made cake. Chief Justice Roberts noted the inconsistency in Waggoner’s strategy, remarking, “if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.”

The Chief also did not appreciate Cole’s comparison between those who discriminate on race and Jack Phillips. He noted that Obergefell, which held that the Fourteenth Amendment grants the right to marry to same-sex couples, “went out of its way to talk about the decent and honorable people who may have opposing views.”

Justice Alito:

Justice Alito was troubled by what he believed to be discriminatory application of Colorado’s public accommodations statute. “It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.” For Alito as for many, this case will come down to whether a wedding cake is inherently celebratory of the marriage at issue.

Justice Alito reminded all of us that, on summary judgment, the facts are to be taken in the light most favorable to Masterpiece Cakeshop, and that, at the time, same-sex marriage was not legal in Colorado. He also seemed to bond with the lawyers arguing for the Petitioners. Justice Alito attempted to assist Waggoner, when she was struggling to draw a line between activities that are communicative and those that are not. Architects, he seemed to imply, deserve free speech protection even though architecture’s primary purpose is functional. Instead of taking the assistance, Waggoner claimed that architectural designs are not speech. This was a mistake, by Waggoner, that Justice Breyer noted was “baffl[ing].”

General Francisco and Justice Alito also shared a moment where they appeared to mock the more liberal members of the Court. No Justice believed that a master chef creates speech, so the major question is why custom-cake bakers are on the other side of the speech/conduct line. Justice Alito noted that “my colleagues … go to more elite restaurants than I do,” and General Francisco agreed.

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As evidenced by the near-constant barrage of hypotheticals involving future cases, Masterpiece Cakeshop has important implications for both antidiscrimination law and First Amendment protections. Many of the Justices and the lawyers wanted to use strict scrutiny as a way of limiting this decision to its facts or to avoid destroying civil rights law. I find this approach concerning, because strict scrutiny should not be diluted in the free speech context. Very few restrictions on speech survive strict scrutiny, which provides that a content-based restriction on speech must be invalidated unless the restiction is narrowly tailored to serve a compelling government interest.

The Court should be loathe to allow strict scrutiny to be satisfied as a way of massaging this decision – or many First Amendment rights in future cases will be jeopardized. Strict scrutiny is applied to all content-based restrictions on speech, and should present a very high hurdle to upholding censorship of speech. I believe it is better for the Court to claim cakes are not speech than to hold that they are speech, but that the government has a compelling interest in restricting the speech anyway.

[Edit: Audio of oral argument in Masterpiece Cakeshop is up. It is such a privilege to hear the Justices grapple with this hard, and important, case. One thing I didn’t entirely get from the transcript was the urgency in the Justices’ tones – what appeared like playfulness has a very sober tone.]

If a museum put a cake in its collection, would you say that it is not artistic, not speech, and must be removed? If a person wore a shirt with a cake on it, would that shirt not be protected speech since it contained no expressive message?

Those examples are certainly protected expression- and I think the Justices would all agree. No one can force a museum to take down art that is rightly there. However, selling cakes for public consumption isn’t entirely analogous to those situations- especially cakes with no words on them.

The copyright question is separate from the First Amendment question. Copyright gives monopoly protection to original content that is sufficiently expressive. The First Amendment compelled speech issue asks whether the state interferes with someone’s speech in an impermissible way. But, if we were to conflate the questions, cakes with no nothing on them do not receive copyright protection. I’m not saying the cakes are not expressive, just that they are not as expressive as songs or art. Hope that helps.

A photograph may be original in three respects.[46] They are not mutually exclusive.
a. Rendition
First, “there may be originality which does not depend on creation of the scene or object to be photographed … and which resides [instead] in such specialties as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques etc.”[47] I will refer to this type of originality as originality in the rendition because, to the extent a photograph is original in this way, copyright protects not what is depicted, but rather how it is depicted.[48]

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If light, shade, exposure are expressive, why not the shape and size of the cake?

As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” cf. Spence v. Washington, 418 U. S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.

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It seems odd that Schoenberg’s music could be expressive without words, but not food.

So when it comes to a postmodern art museum–everything is expressive, everything is art, saying something isn’t art is a form of patriarchy–but when it comes to the first amendment–nothing is art except lyrical song and word-art?